Readers of this blog know that we love preemption in all its forms, including preemption based in the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. §247d-6d.

During the COVID-19 pandemic, a needlessly politicized public health emergency, the PREP Act provided important liability protections to health care providers, vaccine manufacturers, and others working hard to stem the death toll, treat those sickened by the virus, and invent novel treatments.

We have delved into the details of the PREP Act before:  The statute provides defenses to liability and preemption of state laws involving “covered persons” and “covered countermeasures”.  And we have covered numerous COVID-19 related opinions, both good and not-so-good.  Bexis even created a scorecard. 

Today’s PREP Act preemption opinion arose in the medical malpractice context, and comes from Puerto Rico: Marchese Torres v. Pro. Hosp. Guaynabo, Inc., 2025 PR App. LEXIS 1279; 2025 WL 1698806 (May 22, 2025 P.R. App.).

In Marchese Torres, the plaintiffs alleged the defendant doctors and hospital were responsible for negligence in the diagnosis and treatment of her husband.  The exact allegations are not terribly clear, but piecing together bits from the majority and dissenting opinions, it appears that plaintiff’s husband went to the emergency room, was given a COVID-19 test that came back negative, was sent home, and then at some point passed away.  The cause of death and its connection to the ER visit are not spelled out, but presumably the cause of death was COVID-19 related, and the theory was that earlier treatment would have prevented the death.

The trial court dismissed the case on both PREP Act and statute of limitations grounds, and the appellate court upheld on the PREP Act ground without reaching the statute of limitations issue (which is less interesting to us anyway).

According to the court, the physicians and hospital were protected by the PREP Act because

(1) the defendants were “covered persons”;

(2) the challenged actions involved “covered countermeasures” (in this case, the COVID-19 diagnostic test and associated clinical decisions);

(3) there was a causal relationship between the claim and the use of the countermeasure; and

(4) the events occurred during the public health emergency.

The court emphasized that the PREP Act displaces state (and territory) requirements related to COVID-19 countermeasures, including tort liability, and the only exception to immunity is where a death or serious physical injury is caused by “willful misconduct”—a high bar to reach, and one not alleged in this case.

This all seems straightforward, but there was a dissent.  In the view of the dissenting judge, the plaintiff’s case should not have been dismissed because there was conduct independent of a covered countermeasure.  In particular, the dissent viewed the only covered countermeasure to be the administration of the COVID-19 test, with the subsequent decision not to treat (and to send the husband home) as an instance of alleged negligence separate from that covered countermeasure. 

The dissent’s point—that failing to treat is not a “countermeasure”—has some surface appeal.  A “countermeasure” sounds like an action verb, like administering a vaccine, or manufacturing face masks, or intubating a patient whose oxygen levels have fallen dangerously. 

But lest we forget, the pandemic required those on the front lines to make tough choices in doling out care because everything was in short supply:  face masks, vaccines, hospital beds, even space to hold the deceased.  Not all who contracted COVID-19 fell seriously ill, fortunately, and resources often had to be allocated to those in most dire medical need.

Would it make good policy sense to impose liability for failure to treat, when that only would encourage health care providers to practice defensive medicine in the middle of a crisis?  It is not even useful to have doctors make clinical decisions based on malpractice concerns in ordinary times, much less during a pandemic, and we think the majority got the scope of the PREP Act right in affirming the dismissal.

As our scorecard shows, this is not the only opinion where a judge (like the dissenting judge here) has tried to cabin the sweeping immunity and preemption of the PREP Act to allow for more lawsuits than defendants might expect.  Fortunately, in the end the decision correctly affirms the robustness of the PREP Act’s liability protections.